Autonomy, Dignity, and the Transformative Constitution

In my book, 'The Transformative Constitution' (HarperCollins 2019), I argued that the Indian Constitution was transformative in two ways: first, it transformed the relationship between the individual and the State. Erstwhile subjects of the colonial regime became free citizens of a free country, with inalienable rights of their own. And secondly, it sought to transform the relationship between individuals and social power. The framers of the Indian Constitution understood that the State was not the only source of power and oppression in a person’s life, but the social groups and communities – whether religious, caste-based, or even the family – could post an equal threat to happiness, well-being, and dignity. Consequently, the Indian Constitution was democratic in its deepest sense: it aimed to democratize both the public sphere and the private sphere, and ensure that the constitutional values of liberty, equality, and fraternity would be equally applicable in both.

 This is an idea that is of particular importance in the present day. The various, so-called “love jihad” laws that have been proposed by various state governments – one of which is at an advanced state in Uttar Pradesh – brew a destructive cocktail of State and social power coming together to subordinate the individual. Ostensibly against “forced religious conversions”, these laws – in their various iterations – require an advance “notification” to a magistrate if an individual intends to change their religion before marriage, and – if the draft text of the UP Ordinance is anytime to go by – expressly prohibit women from changing their religion to marry.

 It is evident that the “love jihad” laws aim to harness social prejudice against inter-faith marriages, and weaponise social and community power in order to discourage – and even persecute – individuals who want to marry outside their faith. To this is added a dose of violent patriarchy, which is set up on the assumption that women are unable to exercise their choices as free individuals, but must be “protected” by the State.

 The “love jihad” laws present the antithesis of the transformative values enshrined in the Indian Constitution. Instead of democratizing the public and the private spheres, and liberating individuals from State and social power, they further strengthen and entrench the power of the State, and of communities, to interfere with the most intimate and personal decisions that individuals can take. On Constitution Day, one can only hope that if these laws were to be brought into existence, they would not last long.

The Transformative Constitution by Gautam Bhatia draws on pre-Independence legal and political history to argue that the Constitution was intended to transform not merely the political status of Indians from subjects to citizens, but also the social relationships on which legal and political structures rested. Published by HarperCollins, the book is available online at Amazon.

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